The average awaiting-trial prisoner referred for mental observation can wait from six months to two years for a bed, says Brian Venter.
Johannesburg - The murder trial of sporting icon Oscar Pistorius has been an eye-opener for South Africans, many of whom have been oblivious to how our criminal court system functions.
It can be generally stated that, so far, the court has acquitted itself admirably in the full glare of the international media, and this gives us good reason to puff out our chests with pride.
Judge Thokozile Masipa is a veteran judge of impeccable standing, and the prosecutorial and defence teams have been exemplary in their craft.
When the Judge President of the Gauteng region, Justice Dunstan Mlambo, gave his ruling on ground-breaking camera reportage of the trial, he opined that such live media access would display to the world the high standard of the South African justice system.
Perhaps the learned judge should have added that South African justice on display in this trial should show that the scales of Lady Justice apply equally to the extremes of rich and poor in our society. It is all very well for Oscar Pistorius’s vast wealth to purchase him a superb legal defence, with an empathetic judge who has laudably protected his rights to a fair trial in court.
And so it should be.
Unfortunately, the great majority of South Africans accused of serious crimes do not receive such exemplary justice. Many will languish in custody, waiting their day in court, invariably represented by inferior Legal Aid counsel, and their case misrepresented by barely articulate court translators.
I personally know of one accused person who has been in custody for over two years without his case coming to trial. There have been endless exasperating remands.
So it was imperative that this showcase trial of the rich and famous should eliminate, as much as possible, any perceptions of “rich man’s justice”. Unfortunately, from the outset, there have been ominous signs of favourable treatment.
At his bail application in the magistrate’s court, Oscar was given a police escort and smuggled into court via a side entrance to avoid the media.
In the early stages of the trial, Judge Masipa prohibited the publishing of injuries sustained by the deceased victim, which is contrary to common legal practice in most other trials. For example, there was absolutely no court ban on showing the injuries of the brutally slain Anene Booysen.
Crime scene photographs are part of the court record and as such, as disturbing as they may be, are open to general public scrutiny.
But the most worrying signs of possible favouritism by the judge has been her ruling when committing Pistorius for psychiatric analysis. Judge Masipa has decreed that Pistorius be referred to the Weskoppies Psychiatric Institution for 30 days as a day-patient, because “he shouldn’t be punished twice”.
Does the judge consider being admitted to a mental institution for observation as “punishment”, and what in her opinion, was the first instance of “punishment”?
It is extremely rare if not unprecedented that an awaiting trial defendant, accused of a schedule 7 offence, is referred to the hospital for observation as an outpatient. In fact, in the opinion of many eminent psychiatric commentators, it will be virtually impossible to adequately fulfil such an intensive examination on such a casual basis where the individual is an outpatient. Such examinations are routinely done day and night in the institution with the individual under constant observation.
The average awaiting-trial prisoner referred by a court for mental observation can wait from six months to two years for a bed while in custody.
Even Advocate Barbie Cezanne Visser, who was not charged with a capital offence, was committed to Weskoppies an an inpatient, and it took six months for her to get a bed. Punished twice?
The precedent of Oscar’s day-only observation is going to have many other accused in future trials who are being referred to Weskoppies or Sterkfontein hospitals for observation, asking why they can’t also receive outpatient status. No person is above the law. The thousands of nondescript awaiting-trial prisoners also need to be given hope of justice parity for all, regardless of skin pigmentation, class or financial means.